➥ CASE SUMMARY OF:
Nnaemeka Okoye & Ors. v. Ogugua Nwankwo (SC. 234/2004, 27 Jun 2014)
by Branham Chima.
➥ ISSUES RAISED
Burden of proof;
Party to start first.
➥ CASE FACT/HISTORY
The respondent herein as the plaintiff in this suit in the High Court of Anambra State, holden at the Onitsha Judicial Division, in a representative capacity sued the appellants hereto, as the defendants, also in a representative capacity claiming the following reliefs: A declaration that the plaintiff as the head of Nwankwo Okonkwo family as well as the representative head of Obolua family A inAmangwo (kindred)quarters of Ezi – Kwelle Ogidiis entitled to inherit under Ogidi customary rule of succession and customary right of occupancy at any time, at his will, all that portion of land forming part of his ancestral home (property) known as and called Owoko Oruruide land valued at N200.00 (two hundred naira) lying, being and situate at Amangwu quarters of Ezikwelle Nkwelle Ogidi in Idemili Local Government Area within the jurisdiction of this honourable court, the particulars of which will be furnished in a survey plan to be attached to the statement of claim to be filed previously occupied and used by his predecessors in the (occupation) of whom Okonkwo Obolua was his grandfather.
On 23 September 1993, Okike J. stated that the statement of defence being unequivocal, that the plaintiff’s ancestor was the original owner of the land in dispute and the position is that with the defendants in their pleadings admitting that the plaintiff was the original owner, the onus is on the defendants to prove an absolute grant to them. The defendants dissatisfied, appealed to the Enugu Division of the Court of Appeal Coram: Mahmud Mohammed, Sule Aremu Olagunju and Clara Bata Ogunbiyi and they affirmed the decision of Chidozie Okike J. and dismissed the appeal. Again dissatisfied, the appellants have come before this court on appeal on a two ground notice of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the justices of the Court of Appeal were right in holding that from the totality of the facts of this case, that the appellants ought to call their witnesses first?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE DEFENDANTS/APPELLANT OUGHT TO BEGIN FIRST BY CALLING WITNESSES
‘By admitting that the respondent’s ancestors were and that the respondent is still in possession of the land in dispute or even part of it but on a pledge, the onus of proof that those in admitted possession were not the owners of the land in dispute shifted to the defendants/appellants by the operation ofsection 145 of the Evidence Law, Cap.49 ofthe Laws of Eastern A Nigerian, 1963 in force in Imo State. The trial court should have called upon the defendants to begin, not the plaintiff who should not have been called upon to establish what the law presumes in their favour. Per Oputa JSC in Ezeonu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208 at 221; Lawrence Onyekaonwu and Ors v. Ekwubiri and Ors (1966) 1 All NLR 32 at 34.’
‘Since the parties agreed and found as a fact by the trial judge that the plaintiff were the original owners of the land in dispute, the onus is on the defendants to establish a change of ownership by sale. There is no onus on the plaintiffs to establish a pledge. With that onus being on the defendants, it is their duty to begin to adduce evidence, for it is they who would lose if no more evidence is adduced, having regard to the state of the pleadings. Another way of statingit is that when it is accepted by both sides and found as a fact by the trial court that the plaintiffs’ ancestor was the “original founder” of the land in dispute, the presumption is that their successors-in-title continued to be owners of the land in dispute until the contrary is proved. It might seem strange or even radical and revolutionary for a trial court to call on a defendant to take the witness stand by himself or his witnesses before the plaintiff would be heard. But in truth, there is nothing novel or out of the ordinary and so the two courts below were well guided by the applicable rules of court of the High Court of Anambra State, Order 24, rule 17 and sections 135 – 137 of the Evidence Act to decide that the appellant take the first slot of testimony before the respondent as plaintiff. These concurrent findings is well founded, I see nothingupon which to base a departure from what theydid or upset those earlier findings and conclusion. The case of Nwobodo Ezeonu and 2 Ors v. Isaac Obiagwu (1986) 2 NWLR (Pt. 21) 208 at 215 is helpful in that regard.’
‘In dismissing the appeal, Mohammed JCA (as he then was), held inter alia: “The onus of proof lies squarely with the defendants to start their case by calling the relevant evidence to show how the plaintiff’s ancestors made an absolute gift of their land to the defendant’s ancestors. Therefore, having regard to the state of pleadings of the parties, it is quite clear that if no evidence at all had been forth coming from the defendants who have stated, plainly in their statement of defence that the land in dispute originally belonged to the plaintiff ’s ancestors, they would have run foul of section 136 of the Evidence Act and in the absence of evidence on the absolute grant of the land to them, the defendants would definitely have f ailed. In other words by their own statement of defence the def endants now appellants have divested the plaintiff now respondent of this right to begin under normal circumstances if the claim of the plaintiff had been effectively traversed in the statement of defence as was the situation in the case of Are v. Adisa (1967) 1 All NLR 148 at 151. The learned trial judge was therefore right in his decision in his ruling of 23 September 1993 now on appeal, in ordering the defendants now appellants to begin.”’]
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.
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✓ DECISION:
‘From what I have tried to put across above, it is clear that the two courts below were well grounded and sure footed when they concluded that beingled by the pleadings of the defendants, they should testify first at least to resolve the fundamental and crucial part of the evidence as to the historical backgroundof the land indispute, whichthey claimresided originally in the plaintiff/respondent’s ancestor from whichthe appellantsderived their title whichthey assert should not be questioned. The conclusioneasily made is that the appeal lacks merit and I do not hesitate in dismissing it. I dismiss the appeal and uphold the decision of the Court of Appeal, which affirmed the decision ofthe trial judge orderingthat the defendants start their testimony first. Therefore, l order that the trial court continues with the suit with the defendants starting their testimony first. I make no order as to costs.’
➥ FURTHER DICTA:
⦿ GENERALLY IN LAND CASES, THE ONUS OF PROOF LIES ON THE PLAINTIFF
The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be a burden of proof where there are no issues in dispute between the parties, and to discover where the burden lies in any given case, the court has bounden duty to critically look at the pleadings. The general rule is that, it is the plaintiff who seeks a decree of declaration of title that has the onus of proof: Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; Kwamina Kuma v. Kofi Kuma (1936) 5 WACA 4; Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Ayitey Cobblah v. Tettey Gbeke (1947) 12 WACA 294 at 295; Anachuma Nwakaf or and Ors Nwankwo Udegbe and Ors (1963) 1 All NLR 107; Nwankwo Udegbe and Ors v. Anachuma Nwokafor and Ors (P.C) (1963) 1 All NLR 417; Mogaji and Ors v. Odofin and Anor (1978) 4 SC 91; Bello v. Eweka (198 1) 1 SC 101 at 117-120. The norm in civil cases is that the plaintiff starts the process of testimony first and his witnesses if any, thereafter, the defendant proffers his evidence in defence. — M. Peter-Odili JSC
⦿ THE PARTY WHO AFFIRMS THE POSITIVE TESTIFIES FIRST
In civil cases, proof is based on balance of probabilities and it rests on the party who asserts the affirmative, in this case the appellant and he failed to discharge the burden on him. Daodu v. N.N.PC. (1998) 2 NWLR (Pt. 538) 355 at 365 (SC); Lewis and Peat (N. R.I) Ltd v. Akhimien (1976) 7 SC 157 at 169; Mogaji v. Odofin (1978) 4 SC 91; Elias v. Omobare (1982) 5 SC 25. The point has to be made that it is not in all instances where the usual or the norm must play out. This is because, certain peculiar features might be present which will change the course of events like who takes the first shot at the evidence. The courts and counsel should move away from discussing technical matters when the substantial matter in a case is the issue: Buhari v. A Obasanjo (2005) All FWLR (Pt. 258) 1604, (2005) 13 NWLR (Pt. 941) 1 at 297; per Pats-Acholonu JSC; Broad Bank Nigeria Limited v. Alhaji S. Olayiwola and Sons Limited (2005)All FWLR (Pt.251) 236, (2005) 3 NWLR (Pt. 912) 434. — M. Peter-Odili JSC
⦿ LEGAL BURDEN VS EVIDENTIAL BURDEN
Burden of proof is two-fold. The first is the abitity of a plaintiff to establish and prove the entire or reasonable portion of his case before a court of law that can give judgment in his favour. This is always constantly on the plaintiff. The other type is related to particular facts or issues which a party claims exist. It is this burden of proof that oscillates from one party to the other. While the first type of burden of proof is called legal burden or the burden of establishing a case, the second one is called evidential burden Federal Mortgage Finance Ltd v. Ekpo (2004) 2 NWLR (Pt.856) 100 at 122, (2005) All FWLR (Pt. 248) 1667; Ogule Ankpa Agatu Co-operative Group Farming Society v. Nigeria Agricultural and Co-operative Bank (1999) 2 NWLR (Pt.590) 234 … While the legal burden of proof is always stable or static, the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly accordingly, as one scale of evidence or the other preponderates. — M. Peter-Odili JSC
⦿ ONUS IS ON THE OTHER PARTY TO REBUT PRESUMPTION OF THE LAW
When a rebuttable presumption of law exists in favour of a party, the onus is on the other side to rebut it. When any fact is especially within the knowledge of a defendant and upon which he would want to rely, the burden of proving it is on him. — Muhammad JSC.
⦿ WHEN THE BURDEN OF PROOF WILL LIE ON DEFENDANT – WHEN DEFENDANT BECOMES THE ASSERTER OF FACTS
My noble lords, nobody is disputing or denying the operation of the general principle of proof in civil matters by casting the burden of proof on the plaintiff where the averments contained in the statement of claim were traversed by the defendant. In such a situation, the defendant will have to wait for the plaintiff to lead evidence in proof of his averments. This is understandable. It is also elementary. It accords with common sense as he who invokes the aid of the law should be the first to prove his case. But, where the situation presents a little difficulty is in a statement of defence where the defendant introduces a new issue which transforms his line of defence by transforming him now into an asserter of a fact which requires evidence to be led first in order to discharge the burden now cast on him and in order not to allow the suit to stagnate. By way of example: A sues for money due on a bond. The execution of the bond is admitted, but says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B, although a defendant. It was who introduced fraud. It was his duty to prove it in order to succeed. It is only by settling the issue of fraud, firstly, in one way or the other that a meaningful progress can be made by the court of trial towards the completion of the entire trial. — Muhammad JSC.
⦿ WHAT IS DISCRETIONARY IS NOT COMPULSORY
What is discretional is not compulsory. It is left to the discretion of the court. “Discretion, when applied to a court of justice, means good discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful, but legal and regular.” Per Lord Mansfield in case of John Wilkes (1763) 4 Burr (Pt. IV 2539). — Ngwuta JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Peter-Odili JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Ogbuli.
⦿ FOR THE RESPONDENT(S)
Chief Ikenna Egbuna.
➥ MISCELLANEOUS POINTS
***DISSENTING
** NGWUTA JSC:
⦿ THE PARTIES REFERRED TO DIFFERENT PIECES OF LAND
‘With profound respect, the fallacy in the concurrent findings of the two courts below lies in the wrong interpretation of the pleadings relied on and the failure to distinguish between general principles and principles restricted to particular cases. I intend to resolve the lone issue in the appeal on the two points stated above. 1. Could it be said that the pleadings of the parties relate to the same piece of land? The plaintiff, in paragraph 4 of the stat ement of claim called the land “ Owoko Oruruide” situate in Amangwu Quarters of Ezi-Kwelle. On the contrary, the defendants, in paragraph 4 of their statement of defence, called the land in dispute “Owoko Oma lacha” situate in Uruowelle Quarter of Nkwe lle Ogidi. The name and location of the land in paragraphs 4 and 5 of the statement of claim is different from the name and location of the land in paragraphs 4 and 5 of the statement of defence. Without evidence to that effect, the court cannot resort to speculation that the parties referred to the same piece of land. The admission made by the defendants in their paragraph 5 of the statement of defence does not relate to the land claimed by the plaintiff in paragraph 5 of the statement A of claim. In my view, the parties did not join issue that Owoke Oruruide is situate in Amangwu Quarter of Ezi-Kwelle or on Owoko Omalacha situate in Uruowelle Quarters of Nkwelle Ogidi nor has the admission in paragraph 5 of the statement of defence any bearing to the land referred to in paragraphs 4 and 5 of the statement of claim.’
‘There is no evidence to show directly or by implication that the land called Owoko Oruruide situate in Amangwu quarters of Ezi-Kwelle in paragraph 4 of the statement of claim is the same as the land referred to in paragraph 4 of the statement of defence as Owoko Omalacha situate atUruowelle-Quarters of Nkwelle Ogidi. Without more, the pleadings do not raise any issue between the parties in relation to the land claimed by the plaintiff now respondent.’
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ CASE WHERE BURDEN WAS ON THE DEFENDANT
In Samson Ochonma v. Asirim Unosi (1965) NMLR 321 the facts are thus: The plaintiff in this case sued for a declaration of title to a piece of land, damages for trespass and an injunction. In his statement of claim, he pleaded that he was the owner of the land by right of inheritance, and the defendants admitted that he had at one time been the owner. The defendant in the statement of defence pleaded that the piece of land verged Red was the only piece of land which the defendant had ever obtained from the plaintiff, and that the plaintiff made an absolute grant of it in 1936. The parties were agreed that the transaction of 1936, whatever its nature, included the payment by the defendant, to the plaintiff of a sum of money which they both described as “kola.” The Federal Supreme Court per Brett JSC held that the defendant having admitted that the plaintiff was the original owner of the land, the onus was on him to establish his plea that there had been an absolute grant to him.
⦿ DECLARATION OF RIGHT CANNOT BE BASED ON ADMISSION MADE IN STATEMENT OF DEFENCE
In Bello v. Eweka (1981) 1 SC 101 at 102, this court held, inter alia : “… the law is that a declaration of title or right cannot legally be based on admission in the pleadings of a defendant.”
➥ REFERENCED (OTHERS)
⦿ BURDEN OF PROOF LIES ON PARTY WHO WILL FAIL IF NO EVIDENCE IS GIVEN
Dennis I. in his “The Law of Evidence,” (2nd Edition; Sweet and Maxwell, London at page 369), stated, inter alia : “The term “burden of proof”; also known as “ onus of proof”; refers to the legal obligation on a party to satisfy the fact finders to a specified standard of proof, that certain facts are true. The facts for this purpose are the facts in issue, the facts on which the legal rights and liabilities of the parties to the case depend… There may be several facts in issue in a given case and the burden of proof of different issues may be differently allocated amongst the parties. For personal injuries caused by negligent driving, the claimant will bear the burden of proof of the defendants negligence and of the causation of the claimant’sinjuries by the negligent driving. If the defendant alleges contributory negligence by the claimant,the defendant will bear the burden of proving it.”
